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Sh. Ram Piari Vs. Municipal Committee, Pathankot and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 9 of 1956
Judge
Reported inAIR1956P& H220
ActsConstitution of India - Articles 226 and 311; Punjab Municipal Act, 1911 - Sections 240; Contract Act, 1872 - Sections 39; Specific Relief Act, 1877 - Sections 21 and 56
AppellantSh. Ram Piari
RespondentMunicipal Committee, Pathankot and anr.
Appellant Advocate K.L. Gosain, Adv.
Respondent Advocate H.R. Mahajan and; F.C. Mital, Advs.
DispositionAppeal dismissed
Cases ReferredCourts. In Whitwood Chemical Co. v. Hardman
Excerpt:
.....application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - the suit was contested by the municipal committee as well as raksha devi. now, whatever its exact nature in substance, the term 'reduction in rank' is a term well known to the legislature and has been used as distinct from an order of removal or dismissal. the theory is that the contract of hiring personal service is of such a personal nature that there cannot be any hope of ultimate and real success by the enforcement of it by law courts. i cannot..........the headmistress of this institution migrated to pakistan on the partition of the country in 1947. raksha devi was informally given the charge of the school as headmistress. she had joined the school in april 1942 on being confirmed in s. v. grade. she continued to act as headmistress till 1950 but she was never officially appointed to this post nor was she ever confirmed.the municipal committee advertised the post of headmistress on 2-12-1949 and then on 31-1-1950. raksha devi also applied for the post. the municipal committee by resolution 7(5) passed on 17-6-1950, appointed ram piari as headmistress in place of r. bhag mal who had migrated to pakistan. about a year later ram piari was confirmed in her post by resolution no. 36 of 25-9-1951. raksha devi made representations against the.....
Judgment:

Bishan Narain, J.

1. The Municipal Committee, Pa-thankot, managed the Municipal Board Primary Girls' School at Pathankot. The Headmistress of this institution migrated to Pakistan on the partition of the country in 1947. Raksha Devi was informally given the charge of the school as Headmistress. She had Joined the school in April 1942 on being confirmed in S. V. Grade. She continued to act as Headmistress till 1950 but she was never officially appointed to this post nor was she ever confirmed.

The Municipal Committee advertised the post of Headmistress on 2-12-1949 and then on 31-1-1950. Raksha Devi also applied for the post. The Municipal Committee by resolution 7(5) passed on 17-6-1950, appointed Ram Piari as Headmistress in place of R. Bhag Mal who had migrated to Pakistan. About a year later Ram Piari was confirmed in her post by resolution No. 36 of 25-9-1951. Raksha Devi made representations against the appointment of Ram Piari.

Ultimately on 4-9-1953 and then on 9-4-1954, the Deputy Commissioner wrote to the Municipal Committee to consider her case and by resolution No. 13 of 29-4-1954, the Municipal Committee appointed Raksha Devi as Headmistress and Bam Piari wasappointed Second Mistress. By letter dated 18-8-1954, the Deputy Commissioner, Gurdaspur, wrote to say that as legitimate rights of Raksha Devi had been ignored in 1950-51 she should act as Head-mistress and Ram Piari should work as a school mistress.

Thereupon Ram Piari filed the present suit against the Municipal Committee and Raksha Devi for the relief of a permanent injunction that the resolution of the Committee dated 29-4-1954, & the order dated 18-8-1954, should not be given effect to and Raksha Devi should not work as Headmistress of the School. This relief was claimed on the ground that the plaintiff was not given an opportunity to explain her position to the Municipal Committee. The suit was contested by the Municipal Committee as well as Raksha Devi.

The trial Court held that Ram Piari could not be demoted and reduced in rank without following the procedure regarding punishment of civil servants and, therefore, the resolution dated 29-4-1954, was invalid as she was not given any opportunity to explain her case. On these findings the suit was decreed. Raksha Devi appealed.

The learned Senior Sub-Judge held that the revision of Ram Piari did not amount to her dismissal as contemplated in Sections 39 and 41, Punjab Municipal Act and the rules framed under the Act. He also held that Article 311 of the Constitution did not apply. In his opinion the resolution of 29-4-1954, was intended to restore the legitimate rights of Raksha Devi and that there was no injustice involved in giving effect to the resolution. On these findings the appeal was accepted and the plaintiff's suit was dismissed. The plaintiff has come to this Court in second appeal.

2. It was argued on behalf of the plaintiff-appellant that in substance the resolution of 29-4-1954, had the effect of dismissing her from the post of Headmistress and of appointing her as a second school mistress and that she could not be dismissed without being afforded reasonable opportunity to show cause against her dismissal as provided in the Punjab Civil Services Rules.

In the alternative it was urged that the principles of natural Justice demanded that she should not have been dismissed without being afforded an opportunity to explain her case to the Municipal Committee. It was conceded before me, and rightly conceded, that the provisions of Article 311 of the Constitution are not applicable to a Municipal employee.

3. There can be no doubt that by the resolution of 29-4-1954, Ram Piari was reduced from the rank of Headmistress to that of second school mistress. She was thus demoted or reduced in rank. It may be said that this is a composite order removing her from the position formerly held by her and appointing her to a position of school mistress which is of lower grade. It has been held by both the lower Courts that the resolution in question amounted to reduction in Ram Piari's rank.

Now, whatever its exact nature in substance, the term 'reduction in rank' is a term well known to the legislature and has been used as distinct from an order of removal or dismissal. In Article 311(1) of the Constitution only terms 'removal' and 'dismissal', are mentioned while in Article 311(2) the terms 'removal', 'dismissal' and 'reduction in rank' are separately used. Similarly this term is separately used in the Civil Services Rules. I am, therefore, of the opinion that for the purposes of this case rules governing 'reduction in rank' are to be seen and the rules relating to dismissal or removal will not be of any assistance.

4. The Government has made rules under Section 240, Punjab Municipal Act. The Government hasmade rules laying down the procedure that must be adopted before a municipal employee is dismissed. In these rules 'dismissal' is defined as 'permanent removal from a substantive appointment for misconduct or incompetence'. Therefore, this procedure could not be applied in the present case as Bam Piari has only been reduced in rank and she has not been so reduced on account of misconduct or incompetence.

5. The Municipal Committee by Notification No. 2459-D-C, dated 13-3-1953, has amended bye-law 55 and has made the rules laid down in the Punjab Civil Services Rules applicable to its employees so far as they relate to leave, travelling allowance, fixation of pay, retirement, suspension and dismissal.

Thus the Punjab Civil Services Rules as applicable to 'reduction to a lower post' were not made applicable to municipal employees and these Rules, therefore, are also not relevant for the purposes of the present case. There are no rules under which it can be said that Ram Piari was entitled to an opportunity to show cause against her reduction to a lower post and, therefore, the validity of the resolution could not be questioned on the ground.

6. The question, therefore, that now arises is whether Ram Piari was entitled to a hearing by her employer under the principles of natural justice. The record shows that Ram Piari was selected as Headmistress in 1950 and next year she was confirmed in that post. She was reverted or demoted in 1954 and there is no suggestion that she was given any opportunity to show cause why she should not be so demoted or reverted.

7. Now, Ram Piari was employed by the Municipal Committee to work and serve as a Headmistress in the Municipal Board Primary Girls' School at Fathankot. The relationship of master and servant thus came into existence between them. The resolutions of 1950 & 1951 under which Ram Piari agreed to serve the Municipal Committee do not contain any stipulation in regard to the period of her employment as Headmistress, nor are there any terms laid down in these resolutions on which she should be reverted if necessary.

Thus there are no contractual or statutory provisions which govern the rights of the parties in the present case. That being so, the Municipal Committee enjoys an absolute power to put an end to the personal relations created by the employment at any time without giving the employee any reason for doing so or any opportunity for showing cause against the proposed action. It, therefore, follows that the plaintiff was not entitled to get any opportunity to explain her position to her employer before she was demoted. That being BO, the plaintiff's suit was rightly dismissed by the lower appellate Court .

8. There is another difficulty in the way of the plaintiff in the present case. This is a suit for grant of mandatory injunction against the implementation of the resolution passed by the Municipal Committee and against Raksha Devi from acting as Headmistress. The plaintiff's case is that she agreed to render personal service to the Municipal Committee by working as Headmistress of the girls school but now she has been called upon to work only as a second school mistress.

It may be that the reduction of her rank may amount to a violation of the contract of her employment and it may further be that Ram Piari was induced to accept the service of the Municipal Committee on account of the grade of employment offered to her. The question, however, remains whether she is entitled to an injunction on the ground of this alleged breach of contract.

Now, Section 21(b) read with Section 56(f), Specific Relief Act makes it clear that a contract to renderpersonal service cannot be specifically enforced. An injunction not to commit breach of contract is only another way to enforce the contract. The theory is that the contract of hiring personal service is of such a personal nature that there cannot be any hope of ultimate and real success by the enforcement of it by law Courts. In Whitwood Chemical Co. v. Hardman, (1891) 2 Ch. 416, at p. 428 (A) Lindley LJ., observed:

'I think the Court, looking at the matter broadly, will generally do much more harm by attempting to decree specific performance in cases of personal service than by leaving them alone; and whether it is attempted to enforce these contracts directly by a decree of specific performance, or Indirectly by an injunction, appears to me to be im-material. It is on the ground that mischief will be done to one at all events of the parties that the Court declines in cases of this kind to grant an injunction, and leaves the aggrieved party to such remedy as he may have apart from the extraordinary remedy of an injunction.'

I am, therefore, of the opinion that Ram Piari is not entitled to the injunction sought by her in the present suit. It is true that the Municipal Committee does not even allege that the plaintiff is not fit to work as Headmistress of the school in the present case. Its only excuse for demoting the plaintiff is that it was done in recognition of the just claim of Raksha Devi who had been working satisfactorily in the school as Headmistress from 1947 to 1950. .

That may be so but it is very unfair both to Ram Piari and Raksha Devi that now one and then the other should be demoted without any adequate reason and probably because of party politics prevailing in this Committee. I cannot help observing that such a state of affairs cannot but have very bad effect on the children studying in this institution.

In any case assuming that the Municipal Committee was not justified in demoting Ram Piari her remedy appears to me to be to seek damages for breach of contract and not to enforce the contract by getting an injunction from this Court.

9. For all these reasons I dismiss this appealbut in the circumstances of the case I leave theparties to bear their own costs throughout.


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